Posted
by
Soulskill
on Friday December 06, 2013 @01:55PM
from the put-on-your-game-face dept.

New submitter chrylis writes "SCOTUSblog is reporting that the U.S. Supreme Court has accepted an appeal in Alice v. CLS Bank, a case in which the Federal Circuit ruled haphazardly that the particular patents in question were invalid but did not address the issue of software patents generally. 'The case will provide a new test of the Patent Act’s most basic provision — Section 101, which broadly outlines what kinds of inventions are patentable. One of the long-standing exceptions to the types of inventions mentioned in that section is that an abstract idea can never be patented. That issue arises frequently these days, especially with rapidly developing technology in computer software. The EFF wrote a summary of the issues in the case when it was before the Federal Circuit this spring. The case files are also available."

I'm so glad that the fate of software patents in the US is being left up to a bunch of old geezers who probably can't figure out how to publish their legal opinions online without the help of their IT department.

If these guys were experts in software patents, they wouldn't need anyone to testify.

Judges are not experts in anything except law. That's why they listen to other people make the case and explain the intricacies as the law applies to the subject. They do their research and they ask tough questions. That's their job.

And then they vote according to whichever way their ideological predisposition leads them. After that, they direct the clerks to figure out how to justify it, which sometimes requires some stretching but always seems to be possible, especially when you can bury it in a few dozen pages of dense legal text.

I respect their learning, I really do, but they're called on to answer the cases for which there isn't a straightforward answer. (If there were, the lower courts would have it, and they wouldn't take the ca

And then they vote according to whichever way their ideological predisposition leads them.

That's true for a wide variety of Supreme Court decisions, but doesn't actually seem to be the case in patent law. It's not unusual to see, for example, Antonin Scalia and Ruth Bader Ginsburg on the same side of a patent ruling, which almost never happens on the kind of politically charged cases that make front-page national news.

You're confusing ideologies. Someone's position on the right or left is not going to have any bearing on their ideological positions about patents, because patents aren't a right/left issue. It's a different type of ideology. A more idiosyncratic ideology. But an ideology nonetheless.

(Actually, I shouldn't say left/right, because dem/rep doesn't break down that way, but I'm simplifying for the sake of clarity.)

That said, because this isn't tied to their political allegiances, they may all be more inclined to listen to the arguments rather than pre-emptively voting with their preconceptions. Not guaranteed, but much more likely than in some cases.

And then they vote according to whichever way their ideological predisposition leads them.

Because everyone expected cases like Obamacare, or Myriad Genetics to come out the way they did given five of the nine current justices are Republican appointees?

Many of the justices do have ideological predispositions as to matters of law, but that simply places a demand on those arguing before the court to frame their argument to the audience. For example, arguing a statutory basis for your case in front of a textual

The ideological dispositions in the legal community do not line up at all with political ones. On patents, the SCOTUS is fairly strongly on the side of rejecting patents on existing practices "on a computer." They refuse to throw out process and software patents categorically, but OTOH they don't really see any process patents they like.

In the case here, the U.S. Court of Appeals for the Federal Circuit agreed the patent was invalid, but couldn't find a majority on a single theory of why. So the SCOTUS is going to be writing a new test for when software patents are valid. Based on past rulings by this court, a clear rule will almost certainly invalidate a lot of existing patents that are currently seen as being in gray areas.

I think this is majorly unfair moderation. There is a perfectly good argument that Thomas was "paid off" in the Monsanto cases. It's damn obvious that they don't care about conflict of interest issues any more. It's a hyperbolic point calling it a bribe, but it does get some of the shallow minds thinking when the word gets used.

I'm so glad that the fate of software patents in the US is being left up to a bunch of old geezers who probably can't figure out how to publish their legal opinions online without the help of their IT department.

Don't worry - they'll render a decision that only affects the narrowest possible circumstances, "leaving the subject open" to further litigation on other slight differences in scope.

The supremes [youtube.com] don't actually rule on the big issues any more - in modern times, it's all subtle refinements and clarifications.

Doesn't that kind of make sense? I mean, no one likes activist judges. I suspect that's because an activist judge is just a judge doing something you don't like, but if they're as inactive as possible...

It's win-win for me. I have a prediction on file with the James Randi Foundation saying that the Supremes will agree to hear a software patent case this year (done, now), and that they will decide it on overly narrow grounds. If I'm right, I'm one step closer to winning the million dollar prize for my psychic powers, and if I'm wrong, well, my day job gets that much easier.:)

It is great news the SCOTUS is taking this up, they've been slowing knocking back the patent excesses, at least at the level of legal precedent. Forcing the lower courts into line is taking time, but the more these lower courts resist, the more reform the SCOTUS will be forced into.

Is there an ideal body you'd like the decision to be left up to? I mean, power corrupts, so any body with any say over something like this is going to be a little corrupted. Among the top of the three branches, the supreme court is probably the least fucked up at the moment. I'd prefer the EFF to be left in charge of the decision, but I'd wager that if they WERE in a position to have that power, they wouldn't be the same EFF we have right now, I think it would be full of industry lobbyists, or intentiona

I'd give them somewhat more credit than that. They definitely made the right call in Molecular Pathology v. Myriad Genetics (ruling that genes couldn't be patented), even though they had no knowledge about biology.

The fact that they're willing to hear this case makes me somewhat optimistic; if they truly didn't understand or care about software patents, they wouldn't have gotten involved. The worst they can do is maintain the status quo, which is what would happen if they didn't intervene.

I should add that this is definitely the best shot we have at dealing with software patents.

It's clear that, because of corporate interests, the legislative branch won't really fix things. (Although it sounds like a few congresscritters have their heads screwed on straight, they're definitely in the minority.)

The executive branch doesn't have the authority to fix things, and it probably wouldn't even if it could. (See the current FFC chair.)

I'm so glad that the fate of software patents in the US is being left up to a bunch of old geezers who probably can't figure out how to publish their legal opinions online without the help of their IT department.

Indeed. I could agree to leave such important things to old troglodytes as long as they were also scientists: "Let us apply the law in this manner provisionally, and re-examine to test the hypothesis of its benefit after N years; We must test a decision to see, and also consider the null hypothesis, for laws that provide no benefit only tax our legal system. Let us rely not on case-law, but on observational evidence of intent to do malice or good."

Sadly no such individuals exist in this reality. The quantum waveform has collapsed into the worst possible configuration: Scientists beg for funds while stodgy old farts rule the world. Note that there is ZERO evidence that patents and copyrights are actually "beneficial for society", we have only evidence that such protections are not required for innovation and profit in the markets that have no copyright or design patents: The automotive and fashion industries. Software Patents? HA! Prove Patents themselves aren't harmful first. It seems we need a medicine that not even The Doctor can prescribe.

I'd expect this much if anything. SCOTUS cannot fix the software patents. It is not even clear what a "software patent" is. IANAL, but the way I understand the patent law, there is absolutely no difference. If you have a gizmo that does A, B, and C, then you can patent it, and how exactly it meets these claims in terms of technology is irrelevant. The patent law itself is oppressive: it infringes on our right to free expression, while providing no discernible benefit to the public. Only the lawmakers can fix this clusterfuck, and they can do so trivially, by gradually shrinking the protection term, giving the manufacturers some time to adapt. But they, of course, lack the will to do so, since they respect the opinions of plutocrats way more than those of the general public.

RMS also advocates a way to get to the same goal in discrete steps, by making patents unenforceable in certain fields (like the medical field or the general purpose computing field). The precedents exist: the surgeons are allowed to ignore patents while curing people. This is much better than defining "software patents" within the law, since any such definition will probably be circumvented by technological means. Rent-seekers could simply inject enough non-software payload into a device and patent it anyway.

Actually how a gizmo does A,B,C is critically important for a patent. As another device can do A,B,C, but in a different way, and it would not violate the patent.

This is irrelevant to my argument, as I am saying that technology has no impact on patentability. It does, of course, affect the patent.

The overall problem with software patents is they define the What (A,B,C) but not the How.

Yeah they do. How? With an algorithm that takes this and gives you that. In short, with a computer. Any software that can do the same is, well, functionally the same. It is entirely consistent that we cannot write around patents, and so the problem is with their very existence. They just do more harm when it comes to software, since the latter is almost always built on top

'Sorting a list' should not be patentable; it's an idea, not a method. 'Sorting a list using bubblesort' is a method, but patenting it should not prevent someone else from sorting a list using quicksort.

'Sorting a list' should not be patentable; it's an idea, not a method. 'Sorting a list using bubblesort' is a method, but patenting it should not prevent someone else from sorting a list using quicksort.

This is correct. The problem is that in arguing against patents, most people look at the title "methods for sorting data" or the abstract "Disclosed herein are methods for sorting data", rather than the claims, which are the only part with any legal weight. A patent claim for a bubble sort likely wouldn't be infringed by a quick sort, and, if it's broad enough that the quick sort would infringe, then there's likely anticipatory prior art in the general art of "searching" that would invalidate it.

But that's not even the core of the argument. The argument turns into, "this is the only method for sorting data because I used it on a COMPUTER!" Seriously, some of these excuses for patents are this stupid. The recent claim for billions of damages for Oracles resulting from a nine-line bounds check routine.

The patent law itself is oppressive: it infringes on our right to free expression, while providing no discernible benefit to the public.

Preventing you from lifting other people's work without compensation is not oppression. "Free expression" is limited to what was already yours, it does not apply to the ideas conceived by others. Patent law is kinda okay, except for all the idiots who want to take it down.

If Person A designs a machine, and the design is made public in one way or another, and then Person B (independently of Person A) builds a machine (or writes a program) based on the design, Person B has not stolen anything from Person A.

Whether or not the design was stolen depends on whether A willingly made the design public. If not, it is theft.

Person A is not deprived of the design or their own ability to also build a corresponding machine.
Person B has done nothing to Person A that he would be morall

IAAPA (I am a patent agent)- My take on the matter is that software patents pass the threshold for patent eligibility, but not for patentability, which is quite different.
Most software-implemented subject matter is certainly patent-eligible, but ought to be struck down under 35 U.S.C. 103 (non-obviousness). Courts have said that 101 is a threshold inquiry, and in my opinion I don't see why slashdotters would have a problem with striking down software patents not because as a class of subject matter they are ineligible, but because the vast majority are obvious.

In the 60s and 70s, various companies were developing high-availability software (process pairs, redundant storage, transactions, ACID, etc). Each of them thought they had developed something unique, and as a result tried to hide it from their competitors.

As a result, progress in the field went a lot slower than it had to, with plenty of reproduced effort. That was in the days before software was eligible for patent, so there is definitely a case to be made that (non-obvious) software patents can be helpful.

Is it still non-obvious when two groups of people come up with the same software?

It really depends on how long they have to work on it before they figure it out.

My point is, we need to balance the benefits of patents (disclosure) with the detriments (short term artificial monopoly). I don't think this is particularly controversial, the real question comes with asking how to balance them. I don't claim to know the answer, and probably no one knows for sure, but setting the level of patentability at a certain level of non-obviousness (with non-obvious being raised to a higher level than

Patents are to trade the private good of being able to exploit your idea as a monopoly for the public good of releasing that idea to the world after a time.

One very obvious point is that If it would take longer to research and find a patented idea than for a skilled engineer in the field, facing the same problem to reinvent that patent - there is no public good in having the idea released after a time.

I would go so far as to say that no patent should ever be given for any invention where it is reinvent-able

We need to balance the benefits of patents (disclosure) with the detriments (short term artificial monopoly).

Have you read modern patents? They consist of dense legalese that's of no practical value to technologists. And twenty years is not "short term" in computing... our industry proceeds much faster than that.

It can be non-obvious. Both Newton and Leibnitz developed calculus around the same time (https://en.wikipedia.org/wiki/Leibniz%E2%80%93Newton_calculus_controversy). More recently, Diffie-Hellman key exchange was independently but secretly developed by Ellis, Cocks and Williamson around the same time, but secretly because they were working for British intelligence (https://en.wikipedia.org/wiki/Diffie%E2%80%93Hellman_key_exchange). Do you think those things are obvious?

Bad example.They all got what they wanted through longer effort.Under software patents, the first would get there a hair before the others, and somehow believe that the others owe it money because he got there first. It works when your trireme gets to a new land first, because there only one land. But if the others were going to get there and didn't copy you, then there is no reason to claim that they should owe you money for doing something first.

There should be a test, not for obviousness, but for "natural result of the engineering process under the current environment".

I said: "natural result of the engineering process under the current environment"A lot of companies design the exact same features using the exact same components (hardware or software)

You're not "inventing" anything when you're the first one to assemble stuff if other companies are independently right behind (as requested by their customers, and pushed by their suppliers). Per the patent office, you did something non-trivial and therefore deserve a patent. So you can charge them for "using your invention".

Your cluelessness about the electronics industry is not data either.Competitors using similar processes and components (physical or virtual) to provide similar products to their customers is how most of it works. Kinda natural when the user wants familiar interfaces, standards-based specs, and as little lock-in as possible.

it also explains all these news items about engineers just jumping around between companies, especially in Silicon Valley. Do you believe that they unlearn everything as soon as they walk

Had to? By which benchmark of the necessity of progress? Were the companies not making profits and the engineers starving on the street? Were the customers dying as code lay unwritten by people busy reinventing the wheel?Let's have Lawyers guide us to this perfect world of companies who happily share, pay royalties, and progress will skyrocket! No-one will ever abuse the system to stall competitors or discourage new entrants.Because anecdotal opinio

In the 60s and 70s, various companies were developing high-availability software (process pairs, redundant storage, transactions, ACID, etc). Each of them thought they had developed something unique, and as a result tried to hide it from their competitors.
As a result, progress in the field went a lot slower than it had to, with plenty of reproduced effort. That was in the days before software was eligible for patent, so there is definitely a case to be made that (non-obvious) software patents can be helpful.

I'm sorry, but this argument is bogus. The software field did not develop slowly in that era because there were no patents, progress was slow going because of the state of the technology itself. Computers were slow and clunky, and advanced programming tools were unavailable. When something as basic as recompiling your code takes all day, which it often did, naturally progress is going to be slow. And the proof is seen a few years later during the PC revolution of the late '70s and early '80s. By that time c

The software field did not develop slowly in that era because there were no patents, progress was slow going because of the state of the technology itself.

You generally lack knowledge of history of computation (and the speed at which the computer industry grew), but more importantly, you failed to even read what I wrote. Progress went slowly because people were hiding information from each other.

IAACP (computer programmer). My take on software patents is that they're completely invalid and should not be patentable in any way. Why?

1) Software is nothing by itself. It cannot run without hardware, and that hardware can be patented. If the software is an essential component of a hardware system (like "firmware" is), then it can be included in the hardware's patent. But the patent should be on the device, the hardware. The hardware's inventor should be the patent holder.

I would love to agree with you, because to me they are all obvious. But the problem lies in the test itself - it is not at all measurable. It is based entirely on opinion, and thus it varies based on the particular "expert" testimony. And what is obvious this year may not have been obvious last year, and that makes it un-pin-downable to me. To me it is a losing battle to try to strike down patent by patent on obviousness. They can go either way, and so it is a never-ending battle, and the lawyers get richer

I would love to agree with you, because to me they are all obvious. But the problem lies in the test itself - it is not at all measurable. It is based entirely on opinion, and thus it varies based on the particular "expert" testimony. And what is obvious this year may not have been obvious last year, and that makes it un-pin-downable to me.

Yes, but "obvious" doesn't mean legally what you think it means: it's a legal conclusion, like "guilty", with a specific definition. Just like we say someone is guilty or a patent is obvious, legally, it's not true unless the government has proven beyond a reasonable doubt or without a clear error, respectively, that the person actually committed the crime or the inventor didn't invent something obvious.

And there actually is an objective test for obviousness (and I'm happy to talk about why or why not it's

The obviousness test has failed us time and time and time again. To me, that's a simple reason for simply banning all software patents, as other countries have done without major mishap.

An issue with software engineers and programmers is that, at least in my experience, they tend to be rather smart people (if sometimes narrowly focused), and thus have a rather skewed view on what they consider to be "obvious". If we rely on non-experts to agree with us on obviousness, we're always going to be disappointed

The obviousness test has failed us time and time and time again. To me, that's a simple reason for simply banning all software patents, as other countries have done without major mishap.

A common misconception. "Software-only" patents are banned in Europe and many other countries, but they're also banned here in the US, under Bilski. What gets issued here are "software" patents that also claim portions of the machine executing the software - and the same exact claims get allowed in Europe. For example, this one [google.com] was granted in Europe in September. Claim 5 sure looks like what you would call a "software patent that has been banned in other countries", right?

An issue with software engineers and programmers is that, at least in my experience, they tend to be rather smart people (if sometimes narrowly focused), and thus have a rather skewed view on what they consider to be "obvious". If we rely on non-experts to agree with us on obviousness, we're always going to be disappointed. And creating some clever process to determine obviousness is going to succeed no better than creating some magical process to solve any challenging and creative problem in the real world. No offense regarding your solution, but I'd guess you're probably looking at this problem through the lens of a programmer or mathematician - solving challenging problems with algorithms and processes is what we do. But it tends not to work as well in the real world, which is much messier and more complex than a computer simulation.

" Copyright is next to useless for smaller programmers, because it's protecting the wrong thing. Basically, copyright protects the exact work,

In my never-to-be-humble-opinion, it's the exact work that should be protected, not the idea that lead to it. Because there's only two things in my job - the idea I'm trying to implement, and the code that implements it. If I'm not protecting the code, then I'm protecting the idea. So software patents are idea patents, because they are all ideas with "on a computer" a

And therefore it is the name of test itself that is one of the horrific failures in this debacle.

What you described is not at all an obviousness test, it's a prior-patent test. It simply asks, has this been patented before in other ways? So it has nothing to do with whether it is obvious to someone skilled in the art. It's a red herring to think that this is testing obviosity. (ahem, new word.)

IAAPA (I am a patent agent)- My take on the matter is that software patents pass the threshold for patent eligibility, but not for patentability, which is quite different.
Most software-implemented subject matter is certainly patent-eligible, but ought to be struck down under 35 U.S.C. 103 (non-obviousness). Courts have said that 101 is a threshold inquiry, and in my opinion I don't see why slashdotters would have a problem with striking down software patents not because as a class of subject matter they are ineligible, but because the vast majority are obvious.

IAAPatent Attorney, and I think you're absolutely right - many of these claims that get struck down under 101 should really have been struck down under 35 USC 102 (novelty) or 103 (obviousness), but that requires searching for prior art and making a prima facie case, and as you know, that's haaaaaaard. It's a lot easier to simply say "I'm sure there's art out there for it... but rather than look for it, I'll just wave my hands and say 'abracadbr- er, abstract idea' and then I can dismiss this case, and the outcome is correct, even if the process is backwards." And, because many Slashdotters are pragmatic engineerin' folks, they frequently care about the outcome more than the process: as long as Mr. Bilski doesn't get his hedge fund patent, then who cares whether it's rejected under 101, 102, 103, 112, or some other high-falutin' number?

But the problem is, part of pragmatism is predictability: if we can't tell ahead of time whether some patent is statutorily valid or invalid, then, pragmatically, how do you make business decisions? It'd be like writing a program, having the compiler tell you it won't run, but never being given any clues or indications as to where your error was. The result is the same - the program crashed - but it doesn't give you any ability to write proper programs in the future, or predict ahead of time whether a program will fail or not.

Your analogy is nearly right. Except that Slashdotters also realize that languages can and should evolve, and programs should be written in the best language for the task that limits unnecessary ancillary issues.

If your program crashes because it failed a particular rule of C++, then it may be a waste of time to debug the exact circumstances of the crash. It may be better to realize that rewriting it in Python will prevent this whole class of problems and a bunch of others, and is the way to go. Similarly

It may be better to realize that rewriting it in Python will prevent this whole class of problems and a bunch of others, and is the way to go.

It's well known among programmer circles that rewriting a program in a different language in order to work around bugs you don't understand just tends to make things worse. Such may be the same with patent laws.

IANAPA (I Am Not A Patent Agent) and I disagree. It's a slippery slope to allow software but argue that "most" is too obvious to be patentable. We should be marking a clear line between mathematical ideas, in particular logical arguments, which software is an embodiment of, and concrete inventions, which software is only a meta language for, but requires a specific chain of circumstances - a compiler into machine language, a machine which can understand the language, and some peripherals to output the resul

IANAPA (I Am Not A Patent Agent) and I disagree. It's a slippery slope to allow software but argue that "most" is too obvious to be patentable.

Not only is it a slippery slope, but it's one we've already slid down. The reason patent attorneys like requiring obviousness and prior art to be used is they've already pretty much killed those two. Any slight difference between the patent claim (or even the wording of the claim) and the prior art is enough to make it "novel" in the eyes of the patent office. A

The case involves Alice Corporation who holds four patents originating in the 1990s of which was for "a computerized system for creating and exchanging financial instruments such as derivatives." These patents were challenged by CLS Bank International in 2007. The district court ruled summarily for CLS in that none of patents were valid. The Federal Circuit initially reversed the lower court; however, the full panel (en banc) voted 7 out of 10 to affirm the district court but also issued 5 separate concurring and dissenting opinions.

This confusion was noted by the Electronic Frontier Foundation in its amicus brief:

" . . . the Federal Circuit has failed to implement a workable standard—or, frankly, any standard at all—as to what computer- and Internet-implemented inventions are patentable. The resulting legal instability has driven up the already-ballooning costs of patent litigation . .."

In my opinion, it appears that main patent simply added "on the computer" to an existing process, namely in an business transaction between two parties, there is a third party that ensures that payment is made and is facilitated. The computer made the transaction faster and more automated as noted by Judge Lourie in his opinion.

“simply appending generic computer functionality to lend speed or efficiency to the performance of an otherwise abstract concept does not meaningfully limit claim scope for purposes of patent eligibility."

In my opinion, it appears that main patent simply added "on the computer" to an existing process, namely in an business transaction between two parties, there is a third party that ensures that payment is made and is facilitated. The computer made the transaction faster and more automated as noted by Judge Lourie in his opinion.

That is the heart of the Business Process patent laws. It's not about "invention", it's about 'ownership' of ideas. I can extend any patent you own, as long as I pay you royalty for your idea. This is one of the main reasons these laws are so bad!

You patent "2+2=4"

I come back and patent (2+2=4) - 1 = 3, acknowledge your original patent and will give you 50% of what I make on my extension of your patent.

Now anyone that uses "2+4=4" can be sued, but also anyone using my extension can be sued. The best par

the current Supreme Court doesn't have a good track record of siding with the 'Little Guy' (*cough*Cittzen's United *cough* Voters Rights Act*). Maybe it's just the libtard in me but I don't have high hopes were going to see an entire class of 'property' invalidated...:(

Well in this case many businesses large and small are affected. The larger ones can afford to amass a portfolio for defensive purposes. The smaller ones cannot. However the mutually assured destruction strategy is only a deterrent for companies that actually make products. It is less effective against patent trolls.

The Voters Rights Act had nothing to do with siding against the little guy! The Court had told Congress before, about a decade ago, that it needed to revisit the issue, and re-examine which areas still had a problem and if there were areas that could have relaxed rules. Congress refused to revisit the issue at all. Congress could have, for example, funded a new study, determined that the sames problems existed in the same places, and renew the old list. But that never happened. Congress refused to take any

This court also has a history of being skeptical of the scope of patent protection, having dealt several anti-patent rulings in the last few years. Of course, all of that means nothing, since past performance is no guarantee of future results. They could just as easily reverse the trend this time. What is important is to fund out which side has hired Paul Clement, since the conservative justices love him and pretty much do whatever he wants, most of the time.

A bit of Hollywood history is that the movie industry was born from the movie people wanting to get away from the abusive patents that gave control to this new and expanding industry to a few east coast barons.

So we can see what happens when you have an industry that is "protected" by patents and the identical industry that isn't.

People argue that without patents nobody would invent anything. But in a rapidly expanding and growing industry people aren't inventing for the sake of inventing but solving p

For instance, EU countries signed a treaty in 1974 saying that computer programs are not patentable, and as a result they all have this provision in state laws. That did not prevent patent offices to grant software patent in EU, that just makes them difficult to enforce.

There is at least a better than even chance that the SC has had enough of the endless litigation and trolling for patents protecting Ideas simply by virtue of them having been done by a computer program.

Contrary to Judge Moore's worries (second link in the article) this would open the floodgates of development of software, and revitalize the industry. SCOTUS has had years of watching the mess this made in industry, and the endless litigation over trivial ideas.

They may well overrule CLS Bank.

No longer could a company sit on a minor IDEA, cast into code, and then patented simply because it was code. They would have to continue to innovate, and perhaps market a product instead of launching lawsuit after lawsuit. Look around at the software patents that are holding back progress on a number of fronts. Just try to come up with a new Codec (like VP8) and watch the trolls band together (MPEG LA) to create a patent pool to go after your product.

I suggest the Audio and Video industries alone would make more progress in the first 4 years after striking down software patents than they have for the last 20 years.

Moore worry that no research on new computerized functions would take place because they couldn't be patented is about as well founded as saying no one would invent a new recipe for Chicken Soup because it couldn't be patented.

A business method patent is a patent on how a person can run around doing "something", not on a machine. A software patent is how a computer can run around doing "something", the computer itself isn't part of the patent. Any patent that consists of "take this person/thing that already exists, and tell it to do the following." is nothing but artwork and should be covered under copyright.